Icarus’ Flight: The Paradoxes in the Contribution of International Law to Solar Power
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Icarus’ Flight: The Paradoxes in the Contribution of International Law to Solar Power
German Yearbook of International Law, Vol. 66 (2023), Iss. 1 : pp. 261–291
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Dr. Thibault Moulin, Catholic University of Lyon ,
Abstract
Abstract: Renewable energy in general, and solar power in particular, are of clear interest for energy transition and the fight against global warming. Yet, international law only makes a poor contribution to the success of solar power, as it creates a fragmented and incomplete legal framework, with several opposing poles. On the one side, due diligence and environmental law aim at fighting pollution, but do not give birth to stringent obligations in favour of green power. On the other side, restrictions about public subventions in WTO law, as well as current interpretations of fair and equitable treatment, legitimate expectations, and resort to the discounted-cash-flow method in the framework of investment law, put excessive constraint on States and may be detrimental to solar power. This article aims at highlighting the shortcomings in positive law, and to make recommendations to improve the legal framework – in a way which better balances public and private interests. It also underlines that human rights law has an increasing role to play in the promotion of solar power.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Thibault Moulin\nIcarus’ Flight: The Paradoxes in the Contribution of International Law to Solar Power | 261 | ||
| I. Introduction | 261 | ||
| II. Solar Power as a Means of Preventing Transboundary Harm: The Absence of Strong Positive Obligations Under Due Diligence | 264 | ||
| III. Solar Power as a Means of Fighting Global Warming: The Moderate Endorsement by Environmental Law Instruments | 266 | ||
| A. The Agnosticism of the UNFCCC | 267 | ||
| B. The Activism of Non-Binding Initiatives | 269 | ||
| IV. Solar Power as an Economic Activity: The Mixed Contribution of WTO Law | 271 | ||
| A. Status of Positive Law (Lex Lata) | 271 | ||
| B. Recommendations on the Improvement of the Law (Lex Ferenda) | 274 | ||
| V. Solar Power as an Investment Location: The Controversial Role of the ECT and BITs | 278 | ||
| A. Status of Positive Law (Lex Lata) | 278 | ||
| B. Recommendations on the Improvement of the Law (Lex Ferenda) | 283 | ||
| VI. Solar Power as a Contribution to the Healthy Environment and Access to Sustainable Energy: The Emerging Support in Human Rights Law | 287 | ||
| VII. Conclusion | 291 |